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2012 DIGILAW 92 (GAU)

Nitya Kalita v. State of Assam

2012-01-24

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 08.10.2007, passed by the learned District & Sessions Judge, Kamrup, Guwahati, in Sessions Case No. 237(K)/2006. By the impugned judgment and order, the learned Sessions Judge, convicted the appellant, namely, Shri Nitya Kalita, who is the younger brother of the deceased, under Section 302 of the Indian Penal Code (for short, the IPC) and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 1,000/- (Rupees one hundred) only, in default, suffer rigorous imprisonment for another period of 3 (three) months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 2. We have heard Mr. J.M. Choudhury, learned senior counsel, assisted by Mr. B.M. Choudhury, learned counsel, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State respondent. 3. The prosecution case, in brief, as revealed during the trial, may be stated as follows:- On 07.08.2001, at about 6-30 p.m., the appellant, who is the youngest son of the informant, killed his brother, namely, Shri Kusal Kalita (herein after referred to as the deceased) by hitting him with an iron rod on the head as well as on the back, in their courtyard, following a quarrel between them. Shri Bhoareswar Kalita (PW 1), father of the deceased and the appellant lodged an FIR (Ext. 1), on the same day, with the police. On receipt of the said FIR, police registered a case being Kamalpur P.S. Case No. 128/2001 (G.R. Case No. 447/2001), under Section 302, IPC and launched investigation into the matter. 4. During the course of investigation, police seized the incriminating iron rod (i.e. the weapon of assault), vide Ext. No. 2, which was used by the assailant, prepared inquest report (Ext. 3), in respect of the dead body of the deceased and got the postmortem examination (Ext. No. 4) done. The investigating Officer (PW-7) also arrested the accused-appellant, and prepared the sketch map. At the close of the investigation, police submitted the charge-sheet (Ext. No. 9), against the appellant. The case being committed, the learned Sessions Judge framed charge under Section 302, IPC, to which the appellant pleaded not guilty and claimed to be tried. 5. No. 4) done. The investigating Officer (PW-7) also arrested the accused-appellant, and prepared the sketch map. At the close of the investigation, police submitted the charge-sheet (Ext. No. 9), against the appellant. The case being committed, the learned Sessions Judge framed charge under Section 302, IPC, to which the appellant pleaded not guilty and claimed to be tried. 5. In order to prove the case, the prosecution examined as many as 7 (seven) witnesses, including the Medical Officer (PW-6) and the Investigating Officer (PW-7). At the close of the evidence for the prosecution, the accused person was examined under Section 313 of the Criminal Procedure Code (in short, the Cr. PC). While denying the allegations, brought against him, the appellant took the plea of alibi by stating that he, being away from his house, was absent at the time of occurrence. He pleaded complete ignorance about the death of the deceased. The learned Sessions Judge, considering the evidence on record, convicted and sentenced the accused-appellant, as indicated above. 6. Being aggrieved by the conviction and sentence, the appellant has come up with the appeal. 7. Mr. J.M. Choudhury, learned senior counsel, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no substantive evidence, on record and that the prosecution failed to establish the guilt of the appellant, beyond all reasonable doubt. The learned senior counsel has also contended, that the leaned Sessions Judge committed error by convicting and sentencing the accused-appellant without cogent and reliable evidence and as such the impugned conviction and sentence are liable to be set aside. 8. Controverting the arguments, advanced by the learned senior counsel, Mr. D. Das, the learned Additional Public Prosecutor, supporting the impugned judgment and order, has submitted that there are sufficient evidence, on record, to show that the appellant had committed the murder of the deceased and that he failed to prove his plea of alibi. 9. In order to appreciate the counter arguments, advanced by the learned counsel, appearing for the parties and to scrutinize the correctness of the impugned judgment and order, we would like to scan the evidence on record as follows:- 10. Shri Badhreswar Kalita (PW 1), who is the father of the deceased and the appellant, lodged the FIR (Ext. 1) with the police. Shri Badhreswar Kalita (PW 1), who is the father of the deceased and the appellant, lodged the FIR (Ext. 1) with the police. He, deposing as PW 1, stated that, at the relevant time, he was away from his residence and that he was reported by Shri Ganesh Kalita (not examined in this case) that some incident had taken place in his house. On being so informed, he rushed to the house and found the dead body of his son. According to this witness, he was reported by the villagers that the appellant killed the deceased and on the basis of the said information had lodged the FIR (Ext. 1) with the police. He also stated that the police, during investigation, seized the weapon of assault i.e. the iron rod vide Ext. No. 2. This witness did not see the occurrence himself and he had no personal knowledge about the involvement of the appellant. Neither Shri Ganesh Kalita nor any other person, from whom this witness came to know about the occurrence, has been examined in this case. 11. Shri Phanidhar Deka, who deposed as PW 2, stated that, on the night of occurrence, at about 7-30 p.m., the appellant went to his house and informed him that a murder having taken place in their house, the villagers had gathered therein. He also stated that, on being requested by the appellant, he went to the place of occurrence and found the dead body of the deceased lying in the courtyard. This witness stated that the villagers, who had gathered in the place of occurrence, had told him that the appellant had killed the deceased. According to this witness he had verbally reported the matter to the police and police prepared the inquest report (Ext. 3). He further stated that, police seized the weapon of assault, i.e. the iron rod, vide Ext. No. 2. None of the villagers, who informed this witness about the involvement of the appellant, has been examined. Hence, there is no corroboration in his evidence. His evidence, regarding involvement of the appellant is a hearsay evidence. The learned Sessions Judge, while convicting the appellant, heavily relied on such hearsay evidence, which is not a substance evidence in the eye of law. Therefore, the conviction, based on such hearsay evidence, cannot be allowed to stand. 12. Hence, there is no corroboration in his evidence. His evidence, regarding involvement of the appellant is a hearsay evidence. The learned Sessions Judge, while convicting the appellant, heavily relied on such hearsay evidence, which is not a substance evidence in the eye of law. Therefore, the conviction, based on such hearsay evidence, cannot be allowed to stand. 12. Shri Narayan Deka, also visited the place of occurrence, deposed as PW 3. According to this witness, he came to know about the occurrence from one Shri Udhab Kalita (not examined in this case). He went to the place of occurrence and found the dead body lying on the courtyard. 13. PW 4 (Shri Bala Deka) and PW 5 (Shri Sarbeswar Deka) are the co-villagers of the appellant and the deceased. They had no knowledge as to how the deceased died. 14. PW-6 (Dr. K.C. Das) and PW-7 (Sri Rabindra Nath Das), being the Medical Officer and the Investigating Officer respectively are the two official witnesses. They were not witness to the occurrence. The Medical Officer, who performed the autopsy of the deceased, deposed as PW-6, he finds the following injuries. 1. One lacerated injury found on the scalp over the left temp-parietal area size 8 cm x 3 cm x scalp dead oblique. Underneath parietal bone fractured depressed comminuted fracture. Membrances and brain lacerated size 5 cm x 3 cm x 2 cm deep. 2. One contusion present on back of the chest, right side over the right scapula size 10 cm x 3 cm. 3. One contusion present on back of the chest left side size 9 cm x 3 cm. Opinion – death was due to coma as a result of head injury. All injuries were ante-mortem and caused by blunt force objects. Approx time since death 12 to 24 hrs. Injuries described are sufficient to cause death in ordinary course of nature. Ext. 4 is the P.M. report (photocopy) wherein 4(1) same signature. Also received some certificates such inquest report Ext. 3, dead body Challan Ext. 5, command certificate Ext. 6 and forwarding report Ext 7 wherein Ext. 3(4), 5(1), 6(1) and 7(1) are my signature respectively. The said doctor opined that the death was caused due to impact of blunt force on the head and that the injury was ante-mortem, caused by blunt heavy weapon. 15. 3, dead body Challan Ext. 5, command certificate Ext. 6 and forwarding report Ext 7 wherein Ext. 3(4), 5(1), 6(1) and 7(1) are my signature respectively. The said doctor opined that the death was caused due to impact of blunt force on the head and that the injury was ante-mortem, caused by blunt heavy weapon. 15. From the said medical evidence, it is clear that the death of the deceased was caused due to blow given on the head with a heavy object like rod. Therefore, the prosecution version, that the deceased was assaulted with an iron rod on his head, cannot be ruled out. 16. Law is well settled that in a criminal proceeding, the burden lies heavily on the prosecution to prove, beyond all reasonable doubt, by adducing cogent and reliable evidence, that none other than the accused had committed the crime. 17. Upon careful perusal of the evidence rendered by the prosecution witnesses, we find that none of the witnesses stated that the appellant had assaulted the deceased, causing his death. In fact, none of the witnesses also had directly implicated the appellant with death of the deceased. That a part, there is also no circumstantial evidence leading to the only conclusion that none other than the appellant had caused the death. Except the said hearsay evidence, source of which has not been established, there is no substantive evidence to hold that the death of the deceased was caused by the appellant. Hence, it can not be said that the prosecution could prove the guilt of the appellant beyond all reasonable doubt. Therefore, we do not find it safe to conclude that the appellant is the guilty of the offence under Section-302, IPC. In our considered opinion, the learned Sessions Judge committed error by recording conviction and sentence without sufficient incriminating evidence against the appellant. 18. In view of the above, we find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly, the impugned conviction and sentence are set aside. Consequently the appellant is set at liberty. He be released forthwith, if not required in connection with other case. Return the LCRs.